When No Means No

Community Opinion & Analysis Jul 16, 2004 at 10:32 am

Canadian Immigration Views
By Berto Volpentesta

“I realize that this decision will be a disappointment to you, and that my response at this time could not be more favourable. Thank you for your interest in Canada”, “You must leave Canada by…,” “You have been found to ….”. Is this really the end? Is this NO final? Many have received these types of letters from Visa Officers indicating that their case has been refused or from Immigration Officers indicating that their status has been removed and ordered to leave Canada and naturally many have been left heart-broken after such a long journey. But it may not be the end.

Citizens and Permanent Residents who have sponsored members of the Family Class can appeal the refusal to the Immigration and Refugee Board, Appeal Division (IRB or the Board) here in Canada. Landed Immigrants (also known as Permanent Residents) who have been found to have abandon Canada as their home or who have been otherwise asked to leave Canada (for example: when a permanent resident is convicted of a crime they will eventually also be removed from Canada) also have the right to an appeal before the same board. So it may not be the end just yet.

However, read the complete letter and if you don’t understand it, get help. There is a time limit by which you have to submit your intention to appeal the decision. That’s right, there is a time limit. The whole process is much easier if you file the appeal within the given time. Your right to appeal may be lost if you don’t file on time. After waiting for so many years to have your family come to Canada, it doesn’t make any sense to throw away your chance, maybe your last chance, to have them here.

Sponsors can only appeal a refusal of members of the Family Class. The family class includes spouses, dependant children (including adopted children), parents and grandparents and a few others such as orphaned nieces, nephews, brothers and sisters. You do not have a right to appeal refusals of brothers, sisters, uncles, aunts, nieces, nephews (other than orphaned) or anyone who did not pass the point system. Although, if the decision was not made according to law or there is some fact that is incorrect the applicant may have a right of appeal to the Federal Court.

Most Family Class refusals from in our experience are on medical grounds or questionable marital status. Persons who are found to be medically inadmissible, meaning that they either have a communicable disease or more likely they will likely be a burden on Canada’s health and or social service system will be refused.

Marriages that are not performed according to the laws and customs in the country they took place and according to the laws of Canada or marriages that were entered into only for the purpose of gaining immigration to Canada will also result in a refusal.

When a Permanent Resident of Canada commits a crime that person may be ordered removed from Canada. When a Permanent Resident stays out of Canada for too long, that person may be determined to have abandoned Canada as their home and will also be ordered to leave Canada.

At an appeal hearing the appellant (sponsor or permanent resident as the case may be) must demonstrate either that there has been an error in law or in fact or in mixed law and fact or that in all the circumstances of the case their exist certain humanitarian or compassionate considerations that the appeal should be allowed anyhow or perhaps a principle of natural justice has not been followed.
Each case is considered as if it were new. So new evidence may be introduced. Each case is judged on its own merits and all the circumstances are given the appropriate consideration. If in the end the Board feels that the office made an error in the law, or made an error based on the facts of the case or a little of both or if a principle of natural justice has been breeched, the Board may decide to allow your appeal and that means success.

In some cases there is no error in law and all the facts are correct but there are enough humanitarian and compassionate considerations. For example, if you have a strong emotional, physical, mental, financial or other dependency on your relative and your relative has the same on you then despite the inadmissibility the Board may decide to allow the appeal and your relatives will continue to be processed or the resident will be allowed to stay. You can keep this in mind, it may be reasonable to allow your mother who suffers from mild arthritis and has no other family to come to Canada. On the other hand, if your mother has a highly contagious or a disease that is likely to get worse and require more and more resources to treat, the test becomes harder and harder. How much is too much?

You should examine closely any refusal letter. Find out if you have a right to an appeal. If you have the right, make sure you exercise that right. What other option do you have? The first no is not necessarily the final answer.

Have a question? Send them to Berto Volpentesta or to the editor.

Berto Volpentesta of SV Canada Immigration Specialists (Sidhu & Volpentesta Inc.) has been a practicing consultant in Toronto since 1991.